January 5, 1934 – The Costigan – Wagner Anti-Lynching bill is Proposed to the Senate

As Wil Haywood reports in his book Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America, “since 1900 [to 1934] there had been thirty-five hundred recorded lynchings in the United States; there had been only twelve convictions.” [Note: Statistics exist from 1882 forward; had Haywood taken those numbers into account, the total would have been over forty-six hundred.] Previous attempts to introduce antilynching legislation at the federal level had met with no success. Haywood adds, “President Roosevelt agreed with the need for an antilynching bill, but he retreated from southern opposition to it, and the bill gained no traction.”

In 1934 the NAACP launched a campaign to obtain passage of an antilynching bill introduced by Senators Edward P. Costigan of Colorado and Robert Wagner of New York on this day in history. Like those that preceded it (and failed), the Costigan-Wagner bill placed responsibility for its enforcement with local authorities. Sheriffs who failed to take appropriate action to protect prisoners in their custody could be penalized under the act. Provision was also made to compensate the families of those who had been victimized by mob action.

Senator Edward Prentiss Costigan

Senator Edward Prentiss Costigan

Thurgood Marshall, then serving as Solicitor General of the U.S., sent a letter to Maryland Senator Millard Tydings, urging him to lend support to the Costigan-Wagner Anti-Lynching Bill. Senator Tydings had delayed in taking a stand on the proposed bill and Marshall sought to convince the senator that it was in his interest as “a champion of fair-play and justice” to support the bill. But Senator Tydings had a number of objections to the law, including his belief that the law infringed on “state’s rights.”

Thurgood Marshall in 1936

Thurgood Marshall in 1936

Marshall disagreed, writing in a letter to Senator Tydings on January 29, 1935:

This bill does not deprive the states of a single right which they now have. When the officers of the state either act on behalf of the mob or fail to use reasonable means to prevent them from acting, as was done in the lynching of Claude Neal in Florida; when daily newspapers told of the proposed outrage and invited all to attend; and when the lynching was over, the lawless element with the sanction of officials of the state continued to spew their venomous wrath upon innocent, law-abiding tax-paying Negro citizens . . . how in the name of justice and decency can anyone talk of protecting the rights of such a state when it has forfeited all rights to be classed as a state because of open treason and rebellion?”

It was not until April 15, 1935 that Senator Costigan served notice upon the Senate that upon conclusion of debate on [a farm bill] he would demand consideration of the anti-lynching bill introduced by himself and Senator Robert F. Wagner of New York.

A filibuster was immediately organized to resist the bill’s passage in the Senate.

Much to the disappointment of the African-American community, this bill did not pass and lynchings continued in many Southern states well into the fifties.

December 30, 1853 – Gadsden Purchase Treaty Signed in Mexico City

President Franklin Pierce sent Ambassador James Gadsden to Mexico City in 1853. His mission was to buy land from Mexico to the south of the boundaries established by the Treaty of Guadalupe-Hidalgo, which had ended the Mexican-American War of 1846-48. Pierce preferred that Gadsden obtain for the United States a port on the Gulf of California. This would have allowed for more expeditious transport of heavy machinery to copper and silver mines in the Southwest. Mexico, however, refused to grant that option.


The purchase terms that were accepted included lands south of the Gila River and west of the Rio Grande. The treaty settled the dispute over the exact location of the Mexican border west of El Paso, Texas, giving the U.S. claim to approximately 29,000 square miles of land in what is now southern New Mexico and Arizona, for the price of $10,000,000. It established the southwestern boundary of Arizona at Yuma, where it remains today. The Senate ratified the treaty on June 24, 1854.

Gadsden Purchase Area

Gadsden Purchase Area

Tucson had already been occupied by native tribes such as the Pima and the Papagos, as well as by descendants of Spanish explorers. The town was built on the site of the little Pima village of “Stjukshon” (dark spring). In 1775, Irish-born Hugo O’Conor, a member of the Spanish army, established a presidio (fort) on the site. O’Conor did not stay in Tucson but went off with Spanish forces to fight the Apache and Comanche tribes who were attacking the area.

After 1853, Tucson became the only walled city that the United States has ever known. It has since expanded far beyond the original Presidio district.

Tucson’s culture remains mostly Hispanic, but with a good bit of the Irish coming out on St. Patrick’s Day.


December 27, 1784 – Kentucky Begins Its Bid to Join the Union as the 15th State

On December 31, 1776, the region of Virginia beyond the Appalachian Mountains was established as Kentucky County by the Virginia General Assembly. The movement for statehood began in 1784 with a constitutional convention for Kentucky, called by Colonel Benjamin Logan on this day in history in Danville, the capital of Kentucky County, Virginia. But this and numerous subsequent conventions failed to produce a consensus on government. A ninth convention in 1788 finally agreed on terms, and the U.S. Congress offered Kentucky the opportunity to become the 15th state in the Union, effective on June 1, 1792.


Kentucky is one of four U.S. states to officially use the term commonwealth. The term has also been used by Virginia, from which Kentucky was created. The other two states calling themselves “commonwealths” are Massachusetts and Pennsylvania.

In addition, Kentucky is one of only five states that elects its state officials in odd-numbered years (the others being Louisiana, Mississippi, New Jersey, and Virginia). Kentucky holds elections for these offices every four years in the years preceding presidential election years. Thus, Kentucky held gubernatorial elections in 2011 and 2015.


As Walter A. McDougall observed in his American history, Freedom Just Around the Corner: “Thanks to the phosphate-rich loam feeding its grass Kentucky was always about horses.” The French counsul observed in 1793 that “horses and lawsuits comprise the usual topics of conversation.”

Indeed, today, Kentucky is home to the celebrated Kentucky Derby, which is the longest running horse race in the United States, held every year in May. The Derby was established in 1875, and is known as the most exciting two minutes in sports. It is also called the “Run for the Roses” because of the garland of roses that is presented to the winner. The race is held at the Churchill Downs Racetrack, the land for which was donated by John and Henry Churchill, the uncles of Meriwether Lewis Clark, Jr.

Clark had traveled to England and France in 1872, attending the Epsom Derby in England. This inspired him to create a spectacle horse racing event in America. The Louisville Jockey Club, founded by Clark, raised the money to build the oval-shaped track, which is currently 1.25 miles in length and 80 feet all the way around.

Horses leave the starting gate for the start of the 133rd Kentucky Derby at Churchill Downs in Louisville, Ky., Saturday, May 5, 2007. (AP Photo/Rob Carr)

Horses leave the starting gate for the start of the 133rd Kentucky Derby at Churchill Downs in Louisville, Ky., Saturday, May 5, 2007. (AP Photo/Rob Carr)

The Kentucky Derby is only open to three-year-old thoroughbred horses.  Spectators purchase tickets for the Kentucky Derby up to a year in advance and dress to impress, with women wearing very large fancy hats. Approximately 150,000 people attend the Kentucky Derby each year from all around the globe for the 120-second-long race, punctuated by sips of Mint Julep, the official drink of the Kentucky Derby.

A Mint Julep is made of bourbon, confectioners’ sugar, a bit of water (or simple syrup), and plenty of mint, and served over cracked or crushed ice.


But the drink most associated with Kentucky is of course straight Kentucky Bourbon itself, named for the Kentucky county of Bourbon. Bourbon became popular in part because, based on corn, it was less expensive to produce than scotch. During the late 18th century, members of the Böhm family, who eventually changed the spelling of their surname to “Beam”, emigrated from Germany and settled in Kentucky. Johannes “Reginald” Beam (1770–1834) was the one who began producing whiskey in the style that became known as “bourbon.” Jacob Beam sold his first barrels of corn whiskey around 1795. The whiskey was initially called Old Jake Beam, and the distillery was known as Old Tub. Later, one Dr. James Crow, a Scottish chemist-physician who came to Kentucky in 1823 and began working for a distiller, allegedly created the sour mash process still used today. (Old Crow is a brand owned by Jim Beam.)


When in Kentucky, you might want to accompany your bourbon with a Hot Brown, a famous dish originating at the Brown Hotel in Louisville in 1926. It’s an open-faced sandwich with turkey, bacon, and tomato with a creamy cheese sauce, and can still be eaten today at the very same hotel, as well as at restaurants all over the state.


Louisville is the largest city in the Commonwealth of Kentucky and the 30th-most populous city in the United States. It was founded in 1778 by Colonel George Rogers Clark during the American Revolution as a communication post, and is named after King Louis XVI of France, making Louisville one of the oldest cities west of the Appalachian Mountains. But don’t assume you know how to pronounce it. Even among residents, you will hear variations of LooAvul, LooEvul, Luhvul, Louieville, Looeyville, Looaville and Looooooo-vul.


The Louisville/Jefferson County, KY-IN Metropolitan Statistical Area (MSA), sometimes also referred to as Kentuckiana, includes Louisville which is in Jefferson County, and 12 surrounding counties: seven in Kentucky and five in Southern Indiana. As of 2014, the MSA had a population of 1,269,702, ranking 44th nationally.

And yet! None of these places have anything to do with the capital of Kentucky, which is Frankfort, the fifth-smallest state capital in population in the United States.


December 24, 2008 – Kentucky Wine Restrictions Ruled Unconstitutional

On this day in history, the US Court of Appeals for the Sixth Circuit Wednesday upheld a district court ruling that two Kentucky statutes regulating interstate wine sales were unconstitutional. The district court had ruled that the in-person purchase requirement in portions of Kentucky’s statutory scheme discriminated against interstate commerce by limiting the ability of out-of-state small farm wineries to sell and ship wine to Kentucky consumers.


The plaintiffs (wineries) filed suit after the U.S. Supreme Court, in Granholm v. Heald (544 U.S. 460, 2005) invalidated wine-related laws that allowed only in-state wineries to sell and ship wine directly to consumers, and requiring that sales by out-of-state wineries had to made “in person.” As Oyez reported:

In a 5-4 opinion delivered by Justice Anthony Kennedy, the Court held that both states’ laws violated the commerce clause by favoring in-state wineries at the expense of out-of-state wineries and did so without the authorization of the 21st Amendment. State authority to engage in such economic discrimination was not the purpose the 21st Amendment. Moreover, in modern cases, that amendment did not save state laws violating other provisions of the Constitution.”

The real defendants (and appellants) in the Sixth Circuit case were the Kentucky based wholesalers, who stood to lose the profits on sales made directly to consumers and retailers by out-of-state wineries.

Circuit Court Judge Eric L. Clay wrote:

Because of the economic and logistical barriers caused by the in-person requirement, small Kentucky wineries benefit from less competition from out-of-state wineries. … Kentucky’s wholesalers receive benefits that are even more direct: based upon the evidence presented by Plaintiffs, [they and similar wineries] would bypass Kentucky’s wholesalers altogether if the in-person purchase requirement were lifted.” [Meanwhile,]… the majority of wineries who do not have a wholesaler are foreclosed from the Kentucky market altogether unless they can take orders directly from Kentucky.”

The court’s reasoning was generally sound, albeit a bit overdramatic. The court noted that with the statutes in place, out-of-state wineries are either forced to incur the added cost of paying a wholesaler or they must wait for Kentucky consumers to travel up to 4800 miles (round trip) (presumably on an artisanal wine-country tour) to purchase out-of-state wine.

Read the Sixth Circuit opinion here, or you can celebrate by ordering wine from one of the successful plaintiffs, the Cherry Hill Winery in Oregon.


December 22, 2015 – Rasho v. Walker Settled

On this day in history, Rasho v. Walker, Docket / Court 1:07-CV-1298-HAB-JAG ( C.D. Ill. ), finally settled after eight years. The class-action abuse case involved the treatment of mentally ill inmates in Illinois prisons.

The claims of plaintiffs beggared belief. According to The University of Chicago Magazine (Spring, 2016, at p. 18):

In their complaint, the plaintiffs alleged they were subjected to cruel and unusual punishment: Inmates who attempted to hang themselves using prison-issued sheets say they were fined for the cost of the sheet. Suicidal inmates would be stripped naked and put in “crisis cells” with no mattress or blankets. Some were deprived of psychotropic medications, causing serious health risks. Others were forced into extended periods in solitary confinement as punishment for their symptoms. (The IDOC [Illinois Department of Corrections] has not admitted liability regarding the allegations.)”



The managing attorney for cvil rights at Equip for Equality, avers that the claims were true. Another attorney working on the case pro bono observed:

It’s a combination of neglect, insensitivity, and a level of unconcern that is shocking.”

The settlement provided that, for the first time ever, Illinois would provide both long-term and acute care in residential treatment centers for prisoners who are so seriously mentally ill that they require hospitalization. In addition, more than 300 new clinical hires would be made to help provide treatment for prisoners with serious mental illnesses, along with over 400 new security staff to work at the new residential treatment units. Assignments to solitary confinement will be reviewed. Construction costs for the new facilities were estimated to be $40 million and the new personnel costs were expected to be approximately $40 million annually.

You can read more about the case, as well as access pertinent documents, here.

Taxation and the Common Good

A large part of current political debates is devoted to taxation, and how much of our incomes we, as citizens, consider to be a necessary or just contribution to the government. Although candidates debate specific programs and policies, at its base, the argument depends on a more fundamental difference between those who feel a sense of commitment to the community, and those who lack the desire to subordinate private interests for the common good. In short, for this latter group, “civic republican norms of equality anchored in notions of mutual obligation run adrift in a sea of commercialism that equates equality with ‘keeping up with the Joneses.’… In our consumer democracy, consumption is the raison d’etre.” (Collins & Skover, 71 Tex L Rev 697, 1993). Hoarding out of fear is not unrelated to this sentiment.


Moreover, as the public-interest law professor Peter Gabel points out (most frequently in his capacity of Associate Editor at Tikkun Magazine), the legacy of “individual rights” that underlies the American legal system, as well as the American mythology of self-determination and libertarianism, militate against a sense of interconnectedness and community. A legal system that is primarily adversarial is more likely to foster a culture that rewards a zeal for retribution rather than a focus on public interest. Thus the concepts of American heritage and indeed “liberty” become conflated with notions of “me first,” and disconnection from others is seemingly legitimated by both law and history. We do not see ourselves as existing within political communities (aside from the militaristic aspect); the concerns of others are simply not our problems. Worse yet, help for the less fortunate is seen as an “entitlement”, a code word that has come to symbolize: lazy, irresponsible, and usually, a person of color.

How do you change these poisonous memes? A movement among legal theorists for a renaissance of “civic republicanism” was quickly quashed by those who argued that implementation of civic “virtue” would require a despotic interference with private preferences; how might this be accomplished without brainwashing, coercion, or other decidedly undemocratic techniques? (see, e.g., Gey, 141 U. of Penn Law Review 801, 1993). One could also argue that, from an ethology standpoint, you can’t fight evolution. The overlap of culture that homo sapiens has acquired obscures but does not eliminate the natural tendencies of primates to define self by separation from others; to act aggressively toward out-groups; and to behave primarily in a way that will prove most beneficial for the preservation and perpetuation of ones own gene pool in preference to that of any others.

There is a slightly more optimistic stance, following the thought of the late Yale law professor and philosopher Robert M. Cover (1944-1986). He famously wrote that “[w]e inhabit a nomos – a normative universe. We constantly create and maintain a world of right and wrong.” (Robert M. Cover, “Nomos and Narrative,” 97 Harv. L.R. 1, 1983). Law is a system of meaning that spans the gap between what is and what ought to be. To Cover, law provides a bridge for us to help us get to a better place in our behavior. Just as human nature is a transformative process, law suggests how we might best transform ourselves: “We ought to invite new worlds.”


One might detect a drawback to this conceptual framework because of the fact that “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” And in this country, we simply do not share the same interpretive commitments. Did the Declaration of Independence mean the same thing to Frederick Douglass as it did to Stephen Douglas? Was the spiritual father of our country Thomas Jefferson, or Jefferson Davis? Our narratives of our past come from diverse sources.

On the other hand, our ideas of what ought to be come to us from our sacred texts. Cover wrote:

Historians of religion have time and again demonstrated that Messianic and apocalyptic narratives have not only proven resistant to social controls, but also that … they are taken most seriously as meaningful guides for conduct.”

Cover had a particular interest in minority religious communities, because with no centralized power or ability to use coercive violence, “common, mutual, reciprocal obligation is necessary.” His analysis of the mythic center of Jewish law revealed a system that institutionalized the principles of obligation through “mitzvahs.” That is, rather than “rights” begrudgingly granted, there are “responsibilities,” the provision of which is moving and dignifying. At the end of his article on “Obligation: A Jewish Jurisprudence of the Social Order” (5 J.L. & Religion 65, 1987), Cover makes his argument most compellingly:

The struggle for universal human dignity and equality still proceeds on many levels all over the world. There is no question that we can use as many good myths in that struggle as we can find. Sinai and social contract both have their place. Yet, as I scan my own – our own – privileged position in the world social order and the national social order, as I attend the spiritual and material blessings of my life and the rather obvious connection that some of these have with the suffering of others – it seems to me that the rhetoric of obligation speaks more sharply to me than that of rights. Of course, I believe that every child has a right to decent education and shelter, food and medical care; of course, I believe that refugees from political oppression have a right to a haven in a free land; of course, I believe that every person has a right to work in dignity and for a decent wage. I do believe and affirm the social contract that grounds those rights. But more to the point I also believe that I am commanded – that we are obligated – to realize those rights.”

Normative legal thought is not without its critics, just as is civic republicanism. As Pierre Schlag observes ironically, “”the problem is not what normative legal thinkers do with normative legal thought, but what normative legal thought does with normative legal thinkers. What is missing in normative legal thought is any serious questioning, let alone tracing, of the relations that the practice, the rhetoric, the routine of normative legal thought have (or do not have) to the field of pain and death.” (Pierre Schlag, 43 Stan. L.R., 167, 1990). To me, this is what the Supreme Court was theoretically designed to contravene. As we have seen, however, it is not immune from the prejudices, politics, and temptations that befall all other citizens. The key might lie in leadership, inspiration, and example.

Without leadership to inspire us to eschew the spiritual emptiness of self-oriented materialism, without a sense of obligation and empathy, we have little chance of escaping the spiraling social and cultural decay we are facing. Without those at the top of our pillars of government demonstrating a recognition of the common humanity and ties among all people, there is no inspiration to rise above our baser natures. Our lives have not been enhanced by continuous consumption and self-absorption; why not give a chance to the affirmation that comes from a life of community connectedness; a life that tries to cross that bridge from what is to what ought to be?


December 11, 1931 – Parliament Passes the Statute of Westminster

On this day in history, the Statute of Westminster officially ended the British Empire (at least on paper) and created the Commonwealth of Nations.


When the Dominion of Canada was created in 1867 it was granted powers of self-government to deal with all internal matters, but Britain still retained overall legislative supremacy.  [Other British colonies were constituted in their turn as Dominions, including Australia (1901), New Zealand (1907), the Union of South Africa (1910), Newfoundland (1919), and the Irish Free State (1922).]

The original Constitution Act of 1867 stipulated that “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.”  The Dominions were thus quasi-autonomous states of the British Empire that deferred to London with respect to external affairs and their constitution. 

The process of independence for Canada began in 1919, with Canada’s separate signature of the Treaty of Versailles.

Although the Statute of Westminster gave legislative sovereignty to the Dominions, it did not place any legal impediment in the way of the Imperial Parliament passing laws for the whole Empire.  

In 1982, the British Parliament passed the Canada Act, which provided for the first time a process by which Canada’s basic constitutional laws could be legally amended without action by the British Parliament. It also declared that no British law passed thereafter would apply to Canada. 

Signing of the Constitution,  April 17, 1982

Signing of the Constitution, April 17, 1982

Peter Hogg, the constitutional law scholar who has written what is said to be the definitive work on Canadian constitutional law, argues that regardless of the views of British courts on the ability of the Imperial Parliament to repeal legislation such as the Statute of Westminster or the 1982 Canada Act, “it is inconceivable that the Supreme Court of Canada would accept the resuscitated power and uphold the new law.” As Canadian Political Science Professor Andrew Heard writes, “Even though Canada only gained control of its own constitutional amendment in 1982 and the very last legal traces of its colonial past have yet to be formally extinguished, it is quite evident that Canada has been a fully independent state for a number of decades.”

Many Canadians celebrate the Anniversary of the Statute of Westminster on December 11 each year to mark the establishment of the statute. Both the Canadian flag and the Royal Union flag are flown together on this day.